Citation Nr: 9814421
Decision Date: 05/08/98 Archive Date: 05/27/98
DOCKET NO. 95-23 526 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Lincoln,
Nebraska
THE ISSUES
1. Entitlement to service connection for headaches.
2. Entitlement to service connection for tinnitus.
3. Entitlement to service connection for a neurological
disorder.
REPRESENTATION
Appellant represented by: Military Order of the Purple
Heart
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Robert W. Legg, Associate Counsel
INTRODUCTION
This matter comes before the Board of Veterans’ Appeals (BVA
or Board) on appeal from a January 1995 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Lincoln, Nebraska, which denied the benefits sought. The
veteran, who had active service from February 1942 to October
1945, appealed that decision, and the claims have been
referred to the Board for review.
Any claim the veteran may have for increased evaluations for
post-traumatic stress disorder is referred to the RO for
appropriate action consistent with the August 26, 1997 letter
from the Director of the Compensation and Pension Service,
Veterans Benefits Administration, following the decision of
the United States Court of Appeals for the Federal Circuit in
Grantham v. Brown, 114 F.3d 1156, 1157-58 (Fed.Cir. 1997).
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he currently has headaches,
tinnitus and a neurological condition as a result of combat
wounds suffered during World War II. As such, the veteran
asserts that service connection is warranted for each
disorder.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that, resolving all reasonable
doubt in the veteran’s favor, service connection is warranted
for headaches and tinnitus. It is further the decision of
the Board that the veteran’s claim for service connection for
a neurological condition is not well grounded, and must be
denied on that basis.
FINDINGS OF FACT
1. The veteran was wounded three times in combat in the
European Theater during World War II, and suffered a
concussion as a result of an enemy shell blast.
2. Residuals of a concussion were noted on the veteran’s
separation examination report dated in October 1945.
3. The veteran currently reports headaches and tinnitus that
have been present since his in-service concussion.
4. The veteran does not currently suffer from a neurological
condition.
CONCLUSIONS OF LAW
1. Headaches were incurred as a result of active service.
38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303
(1997).
2. Tinnitus was incurred as a result of active service.
38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303
(1997).
3. The veteran’s claim for service connection for a
neurological condition is not well grounded. 38 U.S.C.A.
§ 5107(a) (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Background
The veteran is a combat veteran of World War II. The record
reflects that he participated in D-Day on June 6, 1944, and
the subsequent battles of Northern France, the Rhineland, the
Ardennes and Central Europe. As an infantryman, the veteran
was wounded three times, and his separation document reflects
that one of the wounds was incurred on D-Day. The veteran’s
service medical records relate that a short time later, in
July 1944, the veteran received a head injury, and suffered a
concussion, as a result of an exploding enemy shell. The
veteran’s separation examination report dated October 1945
noted this history, and further, noted that the veteran
continued to have symptoms as a result of the concussion. In
addition, pain in the ear was then reported, and swelling was
seen. It was not explained whether the swelling was
unilateral or bilateral.
In March 1965 the veteran was provided a VA neurological-
psychiatric examination in conjunction with claims not at
issue here. The veteran was described as neatly dressed and
cooperative. The veteran’s chief complaint was that he had
pains in his head, noted by the examiner to be the right
parietal area, which were intermittent. The veteran stated
to the examiner that he thought they originated after his in-
service concussion, but he was not sure. The examiner found
that there were no signs of acute or chronic brain syndrome,
and that the veteran’s neurological condition was within
normal limits. The veteran gave a similar history to the
examiner who performed the general medical portion of that
examination, who stated that the veteran was somewhat
overapprehensive about his scalp wound. An audiological test
was also performed, reflecting normal hearing. No mention of
tinnitus is recorded.
In August 1994 during the pendency of this claim the veteran
informed the RO that he has severe headaches, and that his
right ear is painful. The veteran stated that he has had
many headaches from his in-service concussion.
In August 1994 the veteran was provided a VA examination as a
result of this current claim. The veteran informed the
examiner who performed the neurological portion of the
examination that he had had an in-service concussion as a
result of shrapnel wound to the head, and that thereafter, he
has had problems with headaches. The veteran further related
that thereafter he has had intermittent right-sided
discomfort in his head. However, he did deny visual
disturbances or balance problems. The examiner made
reference to a 1991 CAT scan, which revealed mild thickening
and obliteration of the bony structure of the right inner
ear, most likely as a result of old trauma, although
destructive bony changes were not seen. Objectively, the
examiner noted that the veteran’s ear canals were clear, and
his tympanic membranes were within normal limits.
Examination of the eyes revealed sharp discs, and the
veteran’s head was not deformed. Cranial nerves were intact,
and muscle strength in the upper and lower extremities
exhibited no deficits. Deep tendon reflexes were normal.
Cerebellar functions were normal. The veteran was diagnosed
with bilateral sensorineural hearing loss bilaterally and a
history of head trauma with complaints of right parietal
headaches since that time. Photographs of the veteran’s head
were taken and are a part of the claims file.
The veteran was provided a VA peripheral nerve examination
that same day. The veteran informed that examiner of his in-
service combat wounds, including a bullet wound incurred in
July 1945. After a review of the veteran’s history and a
comprehensive physical examination, that examiner did not
find that the veteran had peripheral nerve damage to the
upper extremities. The veteran was also provided a VA
audiological examination in September 1994. The veteran
informed that examiner that he has had a long-standing
history of hearing loss dating from his combat. The veteran
also reported tinnitus.
In January 1995 the veteran was provided a fee-basis VA
examination by a private physician. The veteran reported
that he was wounded three times during World War II, and that
one of his wounds was to the right side of his face and head.
The veteran stated that since his injuries he always had pain
and pressure in his right ear, but that since he is older, he
notices it more. Objectively, the veteran was alert and
oriented to time, place and person, and was described as
fluent and articulate. A full neurological examination was
performed, with substantially normal results. That physician
concluded that if the veteran had posttraumatic headaches, he
would have had them immediately after the concussion to the
present time. The examiner further stated that he did not
believe that the veteran would have been capable of handling
the pain as a young man, but fail to handle the pain as an
elderly man.
The veteran was provided a hearing before the undersigned
Member of the Board at the RO in January 1998. The veteran
stated that he began to have headaches since his combat
injuries, particularly after receiving a concussion. He
continued that he has these headaches almost every day,
particularly at the end at the day. The veteran reported
taking Tylenol for the pain. In addition, the veteran
testified that he has hearing problems, and that people have
had to repeat things to him. Further, the veteran stated
that he has had a ringing in the ears since his combat
service. Finally, the veteran testified that since his
service, he has not had acoustic trauma like that he
experienced during combat.
II. Analysis
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by a
veteran’s active service. 38 U.S.C.A. § 1110 (West 1991); 38
C.F.R. § 3.303 (1997). However, the threshold question in
any claim for VA benefits is whether the claim is well
grounded. The veteran has “the burden of submitting
evidence sufficient to justify a belief by a fair and
impartial individual that the claim is well grounded.”
38 U.S.C.A. § 5107(a); Robinette v. Brown, 8 Vet. App. 69, 73
(1995). A well grounded claim is “a plausible claim, one
which is meritorious on its own or capable of substantiation.
Such a claim need not be conclusive but only possible to
satisfy the initial burden of § [5107].” Murphy v.
Derwinski, 1 Vet. App. 78, 81 (1990).
To establish that a claim for service connection is well
grounded, a veteran must demonstrate the incurrence or
aggravation of a disease or injury in service, the existence
of a current disability, and a nexus between the in-service
injury or disease and the current disability. Medical
evidence is required to prove the existence of a current
disability and to fulfill the nexus requirement. Lay or
medical evidence, as appropriate, may be used to substantiate
service incurrence. Epps v. Gober, 126 F.3d 1464, 1468
(1997).
The chronicity provision of 38 C.F.R. § 3.303(b) is
applicable where evidence, regardless of its date, shows that
a veteran had a chronic condition in service or during an
applicable presumption period and still has such condition.
Such evidence must be medical unless it relates to a
condition as to which, under the United States Court of
Veterans Appeals (Court’s) case law, lay observation is
competent. If the chronicity provision is not applicable, a
claim may still be well grounded or reopened on the basis of
38 C.F.R. § 3.303(b) if the condition is observed during
service or any applicable presumption period, continuity of
symptomatology is demonstrated thereafter, and competent
evidence relates the present condition to that
symptomatology. Savage v. Gober, 10 Vet. App. 488, 493
(1997).
For the reasons that follow, the Board finds that the
veteran’s claims for service connection for headaches and
tinnitus are well grounded, and that the evidence is in
relative equipoise as to whether headaches and tinnitus are a
result of an in-service injury. However, it is further the
decision of the Board that the veteran’s claim for service
connection for a neurological condition is not well grounded,
and must be denied on that basis.
A. Headaches
As referenced above, the veteran suffered a concussion during
combat, and his separation examination report dated in
October 1945 also refers to residuals that were then
symptomatic, more than a year after the concussion. In
addition, the Board notes that the veteran had headache
complaints in March 1965. The VA neurological examiner did
not question the veteran’s credibility of these complaints at
that time, although the other examiner appeared to think that
the veteran worried too much.
The veteran has continued his complaints during the pendency
of this claim. At least one VA examiner has stated that the
veteran has complaints of headaches since his in-service
concussion. The Board further acknowledges the fee-basis VA
examiner’s opinion that the veteran would not have headaches
that would be bearable as a young man but unbearable as an
elderly man. However, implicit in that statement was that
headaches noted between the veteran’s in-service injury and
any currently complained of headaches would tend to support
service connection. In this regard the Board notes the 1965
complaints.
The Board finds that the evidence is in relative equipoise as
to whether the veteran currently has posttraumatic headaches
as a result of an in-service concussion. In doing so the
Board notes the United States Court of Appeals decision in
Collette v. Brown, 82 F.3d 389, 392-393 (Fed.Cir. 1996),
interpreting 38 U.S.C.A. § 1154(b)(West 1991). Resolving all
reasonable doubt in the veteran’s favor, the Board finds that
service connection is warranted for headaches secondary to an
in-service concussion. 38 U.S.C.A. § 5107 (b)(1991).
B. Tinnitus
As noted above the veteran experienced a concussion during
combat duty, with residuals noted at the time of his
separation from service more than a year later. At the time
of his separation examination, it was noted that the veteran
had pain in his ear with swelling. Most recently, the
veteran has reported tinnitus that has been present since
this injury. The veteran reported tinnitus to the VA
examiner that performed the audiological examination in
September 1994, and that such began after the in-service
concussion. That examiner did not question the veteran’s
credibility. While no mention of tinnitus was noted at the
time of the 1965 VA examination, a lack of tinnitus was not
noted.
In light of the above, the Board finds that, resolving all
reasonable doubt in the veteran’s favor, service connection
for tinnitus is warranted. 38 U.S.C.A. § 5107 (b)(West
1991). In this regard, the Board notes that no examiner or
physician has denied that the veteran currently has tinnitus,
and no one has found that the results noted on the veteran’s
October 1945 separation examination report, specifically, ear
pain and swelling, were acute and transitory. Hence, the
Board finds that service connection for tinnitus is
warranted.
C. Neurological Condition
While undoubtedly the veteran was wounded three times in
combat, a review of the above medical evidence of record
fails to show that the veteran currently has a neurological
condition, other than the headaches discussed above. The
veteran was not diagnosed with a neurological condition
during his 1965 VA examination, and the VA examiner that
performed the neurological portion of the August 1994 VA
examination did not diagnose the veteran with a neurological
condition. Likewise, the examiner that performed the
peripheral nerve portion of that same examination did not
diagnose the veteran with a neurological condition. In the
same manner, the fee-basis private physician that performed
the January 1995 VA examination failed to diagnose the
veteran with a neurological condition.
A review of this claim reveals that only the veteran has
found that he currently has a neurological condition that is
related to his combat wounds. However, as a layperson, the
veteran is not competent to provide a medical opinion, such
as a diagnosis. See Espiritu v. Derwinski, 2 Vet.App. 492,
494-495 (1992). Hence, the veteran’s statements, without
more, are insufficient to render this claim well grounded.
As the veteran has failed to produce competent evidence that
he currently suffers from a neurological condition, the Board
must find that he has failed to meet his initial obligation
of submitting a well grounded claim. In the absence of
evidence of a current disability, a valid claim has not been
presented. See Brammer v. Derwinski, 3 Vet.App. 223, 225
(1992) and Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992).
In denying the claim, the Board has also considered the
applicability of 38 U.S.C.A. § 1154(b), which provides that
if a veteran engaged in combat with enemy forces during a
period of war, the VA shall accept as sufficient proof of
service connection of any disease or injury alleged to have
been incurred in service, such satisfactory lay or other
evidence of service incurrence if consistent with the
circumstances, conditions, or hardships of such service,
notwithstanding the fact that there is no official record of
such incurrence. However, even under that statute, relevant
Court precedent provides that in certain cases, a veteran
must still provide medical evidence of a nexus between in-
service incurrence and a current disability. Libertine v.
Brown, 9 Vet.App. 521, 524-525 (1996). In this claim there
is absolutely no evidence of a current disability.
In light of the above, the Board must find that the veteran’s
claim for service connection for a neurological condition is
not well grounded, and must be denied on this basis. In
doing so, the Board recognizes that the issue is being
disposed of in a manner that differs slightly from that
employed by the RO. However, the Court has held that “when
a RO does not specifically address the question whether a
claim is well grounded but rather, as here, proceeds to
adjudication on the merits, there is no prejudice to the
veteran solely from the omission of the well grounded
analysis.” See Meyer v. Brown, 9 Vet. App. 425, 432 (1996).
In reaching this determination, the Board notes that it has
not been made aware of any outstanding evidence which could
serve to well ground the veteran’s claim for service
connection for a neurological condition. Accordingly, there
is no further duty on the part of VA to inform the appellant
of the evidence necessary to complete his application for the
benefit sought. 38 U.S.C.A. § 5103 (West 1991); McKnight v.
Gober, 131 F. 3d 1483 (Fed. Cir. 1997).
ORDER
Service connection for headaches is granted.
Service connection for tinnitus is granted.
Service connection for a neurological condition is denied.
WARREN W. RICE, JR.
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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